Case: 14-11512   Date Filed: 05/13/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11512
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:13-cr-80034-KAM-3



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                    versus

DANIEL EMMANUEL TORREZ,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 13, 2015)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Daniel Emmanuel Torrez appeals his sentence of 150 months’ imprisonment

imposed for his involvement in a drug distribution conspiracy. Torrez raises

several issues on appeal. He argues that the district court erred in imposing a

three-level enhancement based on Torrez’s manager/supervisor role in the

conspiracy and in denying his request for a “safety valve” reduction on the basis

that the role enhancement made him statutorily ineligible for such relief. Torrez

also argues that the district court erred in failing to reduce his offense level for a

minor role and for acceptance of responsibility. Finally, Torrez argues that the

district court procedurally erred by failing to adequately explain its reasoning for

sentencing him to 150 months’ imprisonment. After reviewing the parties’ briefs

and the record on appeal, we find that the district court did not commit reversible

error, and we affirm Torrez’s sentence.

                                    I. Background

      Torrez’s charges and subsequent conviction stem from his participation in a

drug conspiracy, in which Torrez would ship powder cocaine and marijuana from

Arizona to one of his codefendants, Antonio Beverly, who resided in Florida.

Beverly also traveled to Arizona to pick up powder cocaine from Torrez. Beverly,

in turn, would provide a portion of the drugs to another codefendant, George

Bivins, Jr. Both Beverly and Bivins would convert portions of the powder cocaine

into crack cocaine, and then redistribute the drugs to their customers and mid-level


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distributors, several of whom also were named as codefendants. In return for the

drug shipments, Torrez would either have cash shipped back to him or have the

money deposited into a number of bank accounts opened by other individuals.

      In February 2013, a federal grand jury issued an indictment charging Torrez

with multiple counts pertaining to this drug distribution scheme. Torrez pled guilty

without the benefit of a written plea agreement to: (1) conspiracy to possess with

intent to distribute powder cocaine, in violation of 21 U.S.C. § 846; (2) possession

with intent to distribute powder cocaine, in violation of 21 U.S.C. § 841(a)(1); and

(3) two counts of attempted possession with intent to distribute powder cocaine, in

violation of 21 U.S.C. § 841(a)(1). The district court adjudged Torrez guilty on all

counts. After a two-day sentencing hearing in March 2014, the district court

calculated Torrez’s total offense level as 33 with a criminal history category of I;

Torrez’s guideline range was set at 135 to 168 months’ imprisonment. The district

court determined that a sentence within the guideline range was sufficient but not

greater than necessary to comply with the requirements of 18 U.S.C. § 3553 and

sentenced Torrez to a total of 150 months’ imprisonment. This appeal ensued.

                                   II. Discussion

A. Role Enhancement

      On appeal, Torrez argues that the sentencing court erred in calculating his

advisory guideline range by imposing a three-point enhancement for his role as a


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manager or supervisor in the drug conspiracy pursuant to U.S.S.G. § 3B1.1(b). He

contends that, under § 3B1.1(b), he did not qualify as a manager or supervisor in

the conspiracy, but rather had a simple “buyer-seller” relationship with

codefendant Beverly. Moreover, Torrez contends that transcripts of intercepted

phone calls introduced at his sentencing hearing failed to show that he played a

managerial or supervisory role over any other co-conspirators. Rather, Torrez

avers that the communications demonstrated that he had worked “cooperatively”

with other individuals.

      We review a district court’s determination of a defendant’s role in an offense

for clear error. United States v. Jennings, 

, 1253 (11th Cir. 2010).

Pursuant to the Sentencing Guidelines, a sentencing court may increase an offense

level by three levels in instances where “the defendant was a manager or

supervisor . . . and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). In determining the defendant’s role in

the offense, the district court must consider several factors, such as “the exercise of

decision making authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, . . . [and] the degree of participation in

planning or organizing the offense.” 

cmt. n.4.

      It is not required that all of the factors exist in any one case; instead, they are

“merely considerations for the sentencing judge, who makes the factual


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determinations for the applicability of the § 3B1.1 enhancement on a case-by-case

basis.” United States v. Ramirez, 

, 1356 (11th Cir. 2005) (per

curiam). Rather, § 3B1.1 “requires the exercise of some authority in the

organization, the exertion of some degree of control, influence, or leadership.”

United States v. Yates, 

, 1182 (11th Cir. 1993) (per curiam) (internal

quotation marks omitted). The defendant need only manage or supervise one other

participant for the enhancement to apply. See U.S.S.G. § 3B1.1 cmt. n.2.

      Here, while Torrez’s purported “buyer/seller” relationship with codefendant

Beverly might not serve as a sufficient basis for a U.S.S.G. § 3B1.1(b)

enhancement on its own, see United States v. Glinton, 

, 1260 (11th

Cir. 1998), Torrez conceded during sentencing that he had “recruited” at least three

other individuals to the conspiracy and “directed” their actions, see U.S.S.G.

§ 3B1.1 cmt. n.4. Also, transcripts of Torrez’s intercepted phone calls presented

by the government at the sentencing hearing demonstrated Torrez’s level of

“control, influence or leadership” over individuals whom he directly commanded

to perform certain actions regarding the drug conspiracy’s shipping process, as

well as his level of influence over unspecified individuals whom he paid for the

use of their bank accounts. See 

cmt. n.4; see also 

. Thus, the district court did not clearly err in concluding that Torrez qualified

as a manager or supervisor. See 

.


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B. “Safety Valve” Relief

      Torrez next argues that the district court erred in concluding that he was

statutorily ineligible for “safety valve” relief, pursuant to 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2. He contends that, because the enhancement for his

manager/supervisor role under § 3B1.1(b) is invalid, the denial of his request for

“safety valve” relief also is invalid.

      We review a sentencing court’s factual determinations and subsequent denial

of “safety valve” relief for clear error. United States v. Cruz, 

, 1557

(11th Cir. 1997). The defendant has the burden of proving that he meets the

eligibility requirements under U.S.S.G. § 5C1.2. 

valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2

enables a district court to sentence a defendant without regard to the statutory

minimum for certain offenses, if five requirements are met. See United States v.

Milkintas, 

, 1344–45 (11th Cir. 2006) (per curiam). As relevant

here, the defendant must not have been “an organizer, leader, manager, or

supervisor of others in the offense, as determined under the sentencing guidelines.”

18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4). As discussed above, Torrez

qualified as a manager or supervisor under U.S.S.G. § 3B1.1(b). Hence, he does

not meet the fourth requirement for “safety valve” relief, and the court did not err

in denying such relief. See 18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4).


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C. Minor-Role Reduction

      Torrez also argues on appeal that the sentencing court erred in failing to sua

sponte grant him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b). Torrez

asserts that he was entitled to such relief for the following reasons: he never

directly supplied powder cocaine to codefendant Bivins, nor was he involved in the

conversion of powder cocaine to crack cocaine; he was located in Arizona, while

the bulk of Bivins’s operation was in Florida; he was only involved with selling

cocaine to Beverly for about three months; and the majority of the powder cocaine

for which Torrez was held accountable at sentencing never even made it to

codefendants Bivins or Beverly, as the packages were intercepted by law

enforcement.

      A district court’s determination of the defendant’s role in the offense

normally is reviewed for clear error. See United States v. Harness, 

,

1234 (11th Cir. 1999). However, because Torrez failed to raise any objections on

this issue before the district court, we review for plain error. See 

may receive a reduction in his offense level if his role in the

offense “makes him substantially less culpable than the average participant.”

U.S.S.G. § 3B1.2 cmt. n.3(A). The defendant bears the burden of proving his

minor role in the offense by a preponderance of the evidence. United States v.

Rodriguez De Varon, 

, 934 (11th Cir. 1999) (en banc). To receive a


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two-level minor-role reduction, the defendant must show that he is “less culpable

than most other participants, but whose role could not be described as minimal.”

U.S.S.G. § 3B1.2 cmt. n.5.

      In determining whether a mitigating-role adjustment applies, the district

court should consider two principles: “first, the defendant’s role in the relevant

conduct for which [he] has been held accountable at sentencing, and, second, [his]

role as compared to that of other participants in [his] relevant conduct.” De 

. “Only if the defendant can establish that [he] played a relatively

minor role in the conduct for which [he] has already been held accountable—not a

minor role in any larger criminal conspiracy—should the district court grant a

downward adjustment for minor role in the offense.” 

      Here, Torrez fails to demonstrate that the district court plainly erred in

declining to issue a minor-role reduction sua sponte. With respect to the first

prong of the De Varon test, the district court held Torrez responsible for trafficking

and possessing with intent to distribute 8.74 kilograms of powder cocaine and 10

pounds of marijuana. He conceded to this very behavior when he testified during

his sentencing hearing. Thus, Torrez’s actual conduct was identical to the relevant

conduct for which he was held accountable. See 

(determining that the

defendant cannot show his role was minor when the relevant conduct attributed to

him is identical to his actual conduct). With respect to the second prong of the De


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Varon test, Torrez has not demonstrated that he is less culpable than “most other

participants” in the underlying criminal conduct; while at least five other

codefendants also supplied powder cocaine to Beverly and Bivins, they provided

significantly smaller amounts of the drugs. See U.S.S.G. § 3B1.2 cmt. n.5; De

.

D. Acceptance of Responsibility

      Torrez further argues that the district court erred in denying him an

additional third-point reduction in his offense level for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(b). He received a two-point reduction

for acceptance of responsibility, and he now contends that he met the prerequisite

for the third point, as he had entered a timely guilty plea and had saved the

government the great expense of a trial.

      Plain-error review applies here because Torrez did not raise objections

before the district court. See 

. We reject a defendant’s

claim for an additional one-level reduction pursuant to § 3E1.1(b) where the

government did not file a motion in support of such a reduction. See United States

v. Wade, 

, 1282 (11th Cir. 2006); U.S.S.G. § 3E1.1 cmt. n.6

(“Because the [g]overnment is in the best position to determine whether the

defendant has assisted authorities in a manner that avoids preparing for trial, an




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adjustment under subsection (b) may only be granted upon a formal motion by the

[g]overnment at the time of sentencing.”).

      Here, as the record demonstrates, the government never filed a formal

motion for a reduction under U.S.S.G. § 3E1.1(b). See 

.

Indeed, the government argued against any acceptance of responsibility reduction

because Torrez lied under oath during his sentencing hearing. The district court

noted that it could deny Torrez any reduction and could potentially even apply an

enhancement for obstruction, but the court nonetheless gave Torrez a two-point

reduction for acceptance of responsibility since he saved the government from

having to go to trial. Thus, we find that the district court did not err, plainly or

otherwise, in denying Torrez the additional third-point reduction for acceptance of

responsibility.

E. Sentence Explanation

      Lastly, Torrez argues that the district court procedurally erred by failing to

adequately explain its reasoning for sentencing him to a total of 150 months’

imprisonment. He contends that the court’s “routine statement” that it had

considered the parties’ arguments and the factors listed under 18 U.S.C. § 3553(a),

without any further explanation, falls short of ensuring that his sentence within the

guideline range was “sufficient, but not greater than necessary.” Torrez also




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asserts that the court failed to explain why it sentenced him above the minimum

required sentence of ten years’ imprisonment.

      We review the reasonableness of a sentence using a deferential abuse of

discretion standard. Gall v. United States, 

, 41, 

, 591

(2007). Since Torrez is challenging the sentence, he bears the burden of

establishing unreasonableness. See United States v. Tome, 

, 1378

(11th Cir. 2010). Because Torrez did not object to the procedural reasonableness

of his sentence before the district court, we review for plain error. See United

States v. Vandergrift, 

, 1307 (11th Cir. 2014).

      The sentencing court is not required to “incant the specific language used in

the guidelines” or “articulate its consideration of each individual § 3553(a) factor,”

so long as the record reflects that the court considered many of those factors.

United States v. Bonilla, 

, 1182 (11th Cir. 2006) (internal quotation

marks omitted). Here, the district court sufficiently satisfied the requirements for a

procedurally reasonable sentence. After holding a comprehensive sentencing

hearing, the court stated that it had considered the parties’ arguments and the

§ 3553(a) factors. United States v. Amedeo, 

, 832 (11th Cir. 2007)

(“[A]n acknowledgment by the district judge that he or she has considered the

§ 3553(a) factors will suffice.” (internal quotation marks omitted)).




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      Furthermore, although the court did not explicitly articulate the reasons for

its choice of sentence, the context of the entire sentencing hearing indicates that the

court did consider several of the § 3553(a) factors. See United States v. Parrado,

, 1573 (11th Cir. 1990) (finding that the transcript of a sentencing

hearing and sentencing court’s closing remarks sufficiently supported the sentence

imposed). Namely, the court reviewed the nature, circumstances, and seriousness

of Torrez’s involvement in the underlying drug conspiracy. See 18 U.S.C.

§ 3553(a)(1), (2). The court also reviewed Torrez’s history and characteristics,

including his lack of a criminal record. See 

Thus, Torrez has not

met his burden to show that his 150-month sentence was procedurally

unreasonable.

                                   III. Conclusion

      Accordingly, after consideration of the parties’ briefs and review of the

record on appeal, we affirm Torrez’s total sentence.

      AFFIRMED.




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